Many bad romantic comedies feature a protagonist who is eventually rewarded for his refusal to take "no" for an answer to his efforts to romance his intended sweetheart. In real life, however, such persistence usually comes across as obnoxious or stalker-like, and can even lead to legal problems for the employer. While courts have held that mere expression of romantic interest is not sexual harassment under Title VII, persistent entreaties in the face of repeated rejection can eventually create a hostile and offensive working environment.

Earlier this month, the Eighth Circuit Court of Appeals concluded that the line for such solicitations becoming actionable harassment is fairly high. In Butler v. Crittenden County, the plaintiff was a county jail employee whose supervisor asked her out on dates 30 to 40 times. After being suspended for insubordination, she complained of sexual harassment. Her supervisor was told to stop the advances, and eventually the plaintiff was moved to another supervisor. After being fired for absenteeism, she sued alleging sexual harassment and retaliation under Title VII.

The Eighth Circuit affirmed dismissal of the claim on the basis that the plaintiff's allegations did not rise to the level of a hostile and offensive working environment. The court found no connection between her rejection of the supervisor's advances and her later suspension and termination. He never inappropriately touched her or engaged in any threatening or humiliating conduct.

Decisions about whether such conduct constitutes sexual harassment are very factually specific. When supervisors are involved, courts will often presume that the work relationship places implied pressure on the subordinate employee with respect to the requests, that would not be present in the case of a coworker expressing romantic interest. Although usually not explicit, courts often view this conduct as more severe if one or both of the parties are married at the time of the requests. Although the employer prevailed in this case, most companies would not tolerate this kind of behavior from supervisors, and would impose disciplinary action once they learned of it.